Ms Amara Somasundaram v Department of Education & Training, North-Eastern Victoria Region

[2015] FWC 4461

[2015] FWC 4461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.608 - Referral of a question of law to the Federal Court

Ms Amara Somasundaram
v
Department of Education & Training, North-Eastern Victoria Region
(U2015/2980)

JUSTICE ROSS, PRESIDENT MELBOURNE, 2 JULY 2015

Referral of a question of law to the Federal Court – s.608 Fair Work Act 2009 (Cth) – application refused.

[1] The matter before me is an application by Ms Amara Somasundaram (the Applicant) for the referral of a question of law to the Federal Court pursuant to s.608 of the Fair Work Act 2009 (Cth) (the Act).

[2] The questions sought to be referred concern natural justice and procedural fairness and are expressed in the following terms in the Applicant’s application:

“1. Has the Commission erred at law by failing to afford the Applicant natural justice and/or procedural fairness in the course of an unfair dismissal hearing, when

a) the Commission is considering the section 387 Fair Work Act criteria; and

b) the Respondent does not concede that the termination was harsh, unjust or unreasonable; and

c) a witness for the Respondent has given evidence in chief which is on the record; and

d) the Commission does not permit full cross examination by the Applicant’s Counsel of the entirety of that witness’s evidence in chief?

2. Has the Commission erred at law by failing to afford the Applicant procedural fairness and/or natural justice by ordering in all the circumstances that he will proceed to make a finding under section 387 Fair Work Act 2009, without allowing the Applicant the opportunity to test the entirety of the Respondent’s evidence on the record and only allowing submissions from Counsel for each of the parties?”

[3] The referral application arises in the context of an unfair dismissal application filed by the Applicant pursuant to s.394 of the Act on 11 February 2015. The relevant background may be shortly stated.

[4] The unfair dismissal hearing commenced on 6 May 2015 before Commissioner Ryan. The Applicant gave sworn evidence and was cross examined, as were four other witnesses called on the Applicant’s behalf. Counsel for the Applicant then closed her case. On 8 May 2015 the hearing resumed, and the Department of Education and Training (the Respondent) called its first witness, Ms Sue Holmes. Ms Holmes gave her evidence in chief, and counsel for the Applicant commenced cross examination. The matter was then adjourned until 14 May 2015, at which time the cross examination of Ms Holmes continued. After the hearing of the 14 May 2015, the parties unsuccessfully attempted conciliation before Commissioner Gregory.

[5] On 10 June 2015, the hearing continued at which time the Respondent handed up a written submission regarding further conduct of the matter. The Respondent submitted no further hearing was required in relation to the unfair dismissal and advised the Commission it was withdrawing paragraphs 14–80 of Ms Holmes’ statement and the statements of the Respondent’s other witnesses – Mr Peter Greenwell, Mr Aldo Carlino and Ms Jacqueline Wiltshire. The Respondent conceded that it was open to the Commission to find that the dismissal was harsh, and therefore an ‘unfair dismissal’ within the meaning of s.385, and offered the Applicant 26 weeks pay. The Respondent’s submission of 10 June 2015 is in the following terms:

“1. The Respondent has conceded that it is open to the Commission to find that the dismissal was harsh, and therefore an unfair dismissal.

2. Consequently, it does not intend to further contest the issue of whether the dismissal was unfair within the meaning of s 385(b). In that regard:

(a) the Respondent withdraws reliance on the statement of Sue Holmes, save for paragraphs 1–13 (evidence of her position and in relation to Sherbrooke Community School) and paragraphs 81–83, which it relies upon in relation to the issue of appropriateness of reinstatement as a remedy.

(b) the Respondent does not intend to rely upon or call evidence of Peter Greenwell, Aldo Carlino or Jacquie Wiltshire.

2.2 Insofar at the Commission is obliged to have regard to and make findings in relation to the criteria set out in s 387:

(a) the evidence received by the Commission as part of the Applicant's case is sufficient for the Commission to make any necessary consideration and findings;

(b) with reference to that evidence, the parties can make submissions as to the findings the Commission ought to make regarding the criteria in s 387;

(c) the Commission is entitled to take account of the Respondent's position that it is open to find that the termination was harsh as a relevant consideration under s 387(h).

2.3 In those circumstances, there is no basis for any further cross-examination of Ms Holmes, except in relation to the separate issue of reinstatement.

2.4 The Respondent accepts that the Commission may have regard to the oral evidence given by Ms Holmes in chief and in cross examination.

2.5 There is therefore no need for the Commission to continue to hold a hearing in relation to the issue of whether the dismissal was unfair within the meaning of s 385(b).”

[6] The Commissioner acceded to the Respondent’s request and brought the evidentiary hearing to a close. The Commissioner then issued directions for the filing of submissions in relation to criteria specified in s.387. An email accompanying the directions makes it clear that the Commissioner intends to first determine whether the Applicant’s dismissal was unfair, and then, if the dismissal was unfair, to permit the parties to file further submissions and evidence as to the appropriate remedy. A hearing in respect of remedy has been tentatively scheduled for 6 and 7 August 2015.

[7] In the Application’s written submission it was contended that “the Respondent has not conceded that the Applicant’s termination of employment was harsh unjust or reasonable”. This is incorrect as was made plain by counsel for the Respondent in the following exchange during oral argument:

“JUSTICE ROSS:  All right.  Ms Currie, can I check one thing with you, at paragraph 10 and 12, when it says you haven’t conceded, I was under the impression that you had?

MS CURRIE:  We have.  We have conceded.  That’s clear.  We’ve made that concession twice in written submissions and twice on the record.

JUSTICE ROSS:  Okay.  So it’s conceded that the termination was unfair?

MS CURRIE:  Yes.

JUSTICE ROSS:  So the issue that remains in dispute is the remedy question; is that your understanding?

MS CURRIE:  That is our understanding.  The way we’ve explained it, for clarity, is we’ve said it’s open to the Commission to find that the termination was harsh; that it should proceed on the basis that a finding of harshness should be made, and that we will make submissions to the Commissioner to the effect that a finding of harshness should be made.

JUSTICE ROSS:  Okay.  So the contest then that will be joined is you’ll say reinstatement is not appropriate in the circumstances.

MS CURRIE:  Yes.

JUSTICE ROSS:  And that, as to compensation, you don’t oppose an order for 26 weeks?

MS CURRIE:  Correct.” 1

[8] The essence of the Applicant’s complaint is that she wants to complete the cross examination of the Respondent’s witness Ms Holmes. The Applicant has identified two prejudices that may result because of the course adopted by the Commissioner:

(i) the Commissioner may find that the dismissal was not unfair and in doing so may have regard to Ms Holmes’ evidence; or

(ii) the Commissioner may make a finding that reinstatement is not appropriate and may do so on the basis of Ms Holmes’ evidence. 2

[9] As mentioned earlier the referral application is brought pursuant to s.608 of the Act, which is in the following terms:

s.608 Referring questions of law to the Federal Court

(1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

[10] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power of the President to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.

[11] It is clear that s.608 confers a discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. That discretion should be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the Act provides that the Tribunal must perform its functions and exercise its powers in a manner that:

“(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.”

[12] In my view the discretion conferred by s.608 should, where possible and appropriate be exercised in such a way as to avoid undue delay in the determination of matters before the Commission. I note that such an approach is entirely consistent with the approach taken by a number of Full Benches in relation to the legislative antecedents to s.608.

[13] I am not persuaded to grant the reference sought. The most expeditious course is to allow the matter to proceed before Commissioner Ryan. In the event that the Applicant is subjected to prejudice as a result of the Commissioner’s decision to halt Ms Holmes’ cross examination then she may appeal the Commissioner’s ultimate decision and in doing so may agitate the very issues she seeks to refer to the Federal Court.

[14] The referral of the questions put by the Applicant would be likely to lead to a significant delay in the determination of the substantive matter in circumstances where the objects of Part 3-2 of the Act include the establishment of procedures for dealing with unfair dismissals that “are quick, flexible and informal” (s.381(1)(b)(i)).

[15] In all the circumstances I am not persuaded that it is appropriate to grant the referral.

[16] The application is refused.

PRESIDENT

Appearances:

Jardine C, of Counsel with Murdoch A, for the Applicant

Currie C, of Counselwith Monroe J,forthe Respondent

Hearing details:

2015.

22 June.

Melbourne

 1   Transcript 22 June 2015 at paragraphs 5875-5884. Also see paragraphs 5935-5936

 2   Transcript 22 June 2015 at paragraphs 6001-6006

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